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Neff v. Foxwell

United States District Court, D. Maryland

March 7, 2018

FRANK M. NEFF Plaintiff
v.
WARDEN R. FOXWELL, OFC. B. SMITH, and ASSIST. WARDEN W. WEST Defendants

          MEMORANDUM OPINION

          RICHARD D. BENNETT UNITED STATES DISTRICT JUDGE

         In response to this civil rights complaint, Defendants Warden R. Foxwell, Officer B. Smith, and Assistant Warden W. West move to dismiss or for summary judgment, alleging in part that the complaint is barred by the doctrine of res judicata. ECF 12. Plaintiff opposes the motion and moves to rescind all orders requiring payment of filing fees in this case as vyell as all previous cases filed. ECF 14 & 15. A hearing is not require to resolve the matters pending. See Local Rule 105.6 (D. Md. 2016). For the reasons set forth below, Plaintiffs motion regarding filing fees shall be denied and Defendants' motion, construed as a Motion to Dismiss, shall be granted.

         Non-dispositive Motion

         In his "Motion Requesting Court to Dismiss Costs" (ECF 15), Plaintiff asserts that he should not be required to pay filing fees on any of the cases he filed in this Court because he has never won any of his cases. He further states that if this Court does not vacate the Orders requiring payment of fees he will write to the Senate and have the undersigned removed from the bench. Id.

         The Prisoner Litigation Reform Act (PLRA) requires payment of fees on a monthly basis whenever a civil action or an appeal is filed in forma pauperis. See 28 U.S.C. §1915(b). Whether a prisoner-plaintiff is successful in the case he files has no effect on the requirement for filing fees. The motion is denied.

         Background

         In his complaint as supplemented, Plaintiff Frank Neff alleges that on February 15, 2015, Officer BT Smith opened the slot in Neff s cell door, reached inside, put his hands on Neff s genitals, and squeezed, causing Neff pain. ECF 3 at p. 3. Neff claims he called the "MD Public Safety" to report the assault on April 3, 2017. Id. at p. 2. He further states that there were two witnesses to the assault; Lt. White and Major Blane. Id. He states that White "put officer BT Smith off the tier." Id.

         In Neffv. Warden K. Green, Civil Action RDB-15-502 (D. Md.), Neff alleged that:

[H]e was sexually assaulted by a correctional officer at ECI on January 14, 2015, at 11 p.m. ECF 1. Neff claims that Officer M. Smith asked to see his "private part to see how big it was." Id. at p. 3. The following day, Neff asserts Smith sexually assaulted him when Smith grabbed Neff s "private parts" through the slot in his cell door. Id. Neff asserts that sexual assault of an inmate is a crime and nothing was done about the assault committed against him. Id. As relief, Neff seeks monetary damages, good conduct credit, and ownership of the ECI complex. Id.

Civil Action RDB-15-502 at ECF 21, p. 1 (Memorandum Opinion granting summary judgment).

         In response to the complaint, Defendants produced evidence by way of a Serious Incident Report, indicating that Neff withdrew his complaint regarding the incident and confirmed that he was satisfied with the manner in which his claim had been handled. Id. at ECF 17, Ex. 1, p. 11.

         Additionally, the Serious Incident Report investigation established that Officer Smith was not in the vicinity of Neff s cell at the time of the alleged incident. Id. This Court then observed that:

Plaintiffs assertion that Defendant Warden Green did not process his claim properly (ECF 19) is belied by the record. A Serious Incident Report was generated and the claim was investigated upon receipt of Plaintiffs request slip. ECF 17 at Ex. 1. Far from an attempt to cover up the allegation, Warden Green documented it, assigned staff to investigate it, and questioned the alleged offender. Id. On the record before the Court there is no basis for a finding of supervisory liability. Supervisory liability under § 1983 must be supported with evidence that: (1) the supervisor had actual or constructive knowledge that his subordinate was engaged in conduct that posed a pervasive and unreasonable risk of constitutional injury to citizens like the plaintiff; (2) the supervisor's response to the knowledge was so inadequate as to show deliberate indifference to or tacit authorization of the alleged offensive practices; and (3) there was an affirmative causal link between the supervisor's inaction and the particular constitutional injury suffered by the plaintiff. See Shaw v. Stroud,13 F.3d 791, 799 (4th Cir. 1994). Defendant's response indicates Plaintiffs claim was taken seriously and investigated. Moreover, there is no allegation ...

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